Workers' Comp vs Personal Injury in New York: You May Have Both

Most people learn about the second claim too late to preserve the evidence for it. That is the reason for this page.

The trade at the center of workers' compensation

Comp is a no-fault system. You do not have to prove your employer did anything wrong, and it generally does not matter that you were careless yourself. In exchange, Workers' Compensation Law § 11 makes comp the exclusive remedy against your employer and your co-workers. You cannot sue them for the accident.

There is a narrow exception. An injury that meets the statute's definition of a grave injury — death, loss of an arm, leg, hand or foot, paraplegia or quadriplegia, total blindness or deafness, permanent and severe facial disfigurement, and a short list of others — opens a route back to the employer. It is deliberately narrow, and most serious injuries do not meet it.

What comp pays, and the thing it never pays

Comp covers your causally related medical treatment in full, with no deductible and no co-payment, and pays cash benefits based on two-thirds of your average weekly wage adjusted for your degree of disability, subject to a statutory maximum that is reset each July. Where an injury leaves permanent damage to a limb, hearing or vision, a schedule loss of use award may follow — our schedule loss of use calculator works out what the statutory formula gives you.

What comp does not pay for, ever: pain and suffering. Not the surgery you had to have, not the year you spent unable to lift your child, not a permanent limp. New York's comp system does not recognize those as compensable. Neither does it pay the remaining third of your wages, or anything to your spouse.

That gap is not small, and in a serious case it is usually larger than everything comp will pay.

Where the third-party claim comes from

The exclusive remedy protects your employer. It protects nobody else. If someone outside your employer helped cause the injury, they can be sued in the ordinary way — and that claim does include pain and suffering. Common examples:

• A driver. You were driving for work and someone hit you. Comp covers you; the other driver is still liable.
• A property owner or general contractor. On a construction site the owner and general contractor carry non-delegable duties under the Scaffold Law and Labor Law § 241(6) even though they never employed you. This is the single most valuable third-party route in New York.
• A manufacturer. A machine with a removed or defective guard is a product liability claim.
• Another contractor on site. The subcontractor whose crew left the opening uncovered is not your employer.
• A building owner where you were making a delivery or a service call. An ordinary premises liability claim.

How we handle work injuries on both tracks is on our workers' compensation and construction accident pages.

The two rules that cause the most damage

The carrier gets paid back. Under WCL § 29(1) the comp carrier holds a lien on your third-party recovery for what it has already paid, and it also gets a credit against future benefits. It does not simply take the gross figure: New York case law requires the carrier to bear its equitable share of the legal fees and expenses that produced the recovery. Whether that apportionment is done properly makes a real difference to what reaches you, and it is not automatic.

You cannot settle the third-party case on your own. This is the trap. WCL § 29(5) requires the carrier's written consent — or a court order — before you settle a third-party claim for less than the amount of compensation you have received and will receive. Settle without it and you can forfeit your future comp benefits entirely, including medical coverage you may need for the rest of your life. People have signed a modest release for a third-party claim and lost a lifetime of treatment. Nothing about the release warns you.

Different deadlines, and the comp ones come first

• Notice to your employer: generally within 30 days of the accident, in writing.
• Workers' compensation claim (Form C-3): generally within two years of the accident, or of when you knew the condition was work-related.
• Third-party personal injury action: generally three years — but only 90 days for a notice of claim if a public body is involved, which it often is on public works. See how long you have to file.

The third-party claim is also where evidence disappears fastest. Site conditions change within days, the machine gets repaired, and the video is overwritten. The comp claim will still be there next month; the proof for the other one may not.

Common questions

Can I sue my employer in New York?

Generally no. Workers' compensation is the exclusive remedy against your employer and co-workers under WCL § 11. The exception is a statutorily defined grave injury, which is a short and severe list.

Can I bring both a comp claim and a lawsuit?

Yes, where someone other than your employer contributed to the injury. The comp claim pays medical and partial wages during the case; the third-party lawsuit is the one that can compensate pain and suffering.

Does workers' comp pay for pain and suffering?

No. New York's comp system compensates medical treatment, a portion of lost wages and certain permanent losses. It has no category for pain and suffering, which is why the third-party claim matters so much in a serious case.

Will the comp carrier take my whole settlement?

It has a lien for what it paid and a credit against future benefits, but it must contribute its fair share of the costs of obtaining the recovery. Negotiating and apportioning that lien is a significant part of resolving these cases.

What if I was partly at fault?

It does not affect your comp entitlement, which is no-fault. In the third-party claim, New York's pure comparative negligence rule reduces the recovery by your share rather than barring it.

This page is general information about New York law. It is not legal advice, and reading it does not create an attorney-client relationship with Davidov & Cohen Law. To talk about your own situation, tell us what happened.